GULZAR MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 220/2017

[2019] HKCFI 649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 220 OF 2017

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JUDGMENT

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1.  On 22 January 2018, this Court (Hon Yau J) handed down a judgment by way of CALL-1 Form, dismissing the Applicant’s application for leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) which rejected his non-refoulement claim.

2.  The facts and the issues in the application, as well as the reasons of the Court in refusing to give leave to the Applicant are set out in the judgement and the Court is not going to repeat them here.

3.  According to Order 53 rule 3(4) of the Rules of High Court the Applicant has 14 days to appeal against the decision of the Court which expired on 5 February 2018.  By a summons dated 25 October 2018 the Applicant applied for leave to lodge an appeal out of time.

4.  There are ample authorities, such as Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134 and Wong YukManv. Ng Leung Sing & Anor [2016] HKCU 157, saying that in considering whether to extend the time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to:

(1) the length of the delay;

(2) the reasons for the delay;

(3) the prospect of the intended appeal; and

(4) the prejudice to the putative respondent if extension of time was granted

5.  In this case the Applicant was late by more than 8 months.  He explained in his affirmation that when he received the CALL-1 Form he had pleaded guilty to an offence of overstaying in Hong Kong and had been sentenced to imprisonment in Tai Lam Correctional Institution.

6.  As he was fully occupied in his application to the Immigration Department for settlement in Hong Kong as a dependent of his wife who is a Hong Kong citizen and because of the stress and frustration he was going through, he was not aware that he still had a non-refoulement claim going on.  When his application for settlement as a dependent was rejected he was advised by an inmate in the correctional institution that his non-refoulement claim had, according to the CALL-1 Form, been dismissed.  

7.  Due to the limited resources he had in the correctional institution he was late in lodging the application for leave to appeal against the decision of the Court in refusing his application for leave to apply for judicial review.

8.  During the hearing on 19 December 2018, the Applicant repeated what he said in the affirmation and supplemented that he was not aware of the time limitation to lodge an appeal against the decision of the Court and he had been assisted by his wife and a friend to prepare this application.

9.  The explanation given by the Applicant for the delay does not make sense at all.  After receiving the CALL-1 Form it was impossible, even accepting the stress and frustration he was laboured under at that time, that he would not have asked others what was said in the Form if he could not read English himself.  It will, however, become apparent in the latter part of this judgment that he in fact knows the language.  His excuse that he only came to know what was said in the CALL-1 Form after his application for settlement as a dependent had been rejected by the Immigration Department is simply unsustainable.  

10.  When he came to know that his application for leave to apply for judicial review had been refused by the Court he naturally would have made efforts to find out what further step he could take.  He had been able to find out that he could take the decisions of the Director and the Board to the Court of First Instance for judicial review, it is impossible that he would not have been able to find out that he could appeal against the decision of the Court refusing his application for leave to apply for judicial review.  The delay of 8 months is totally unreasonable and the reasons given by the Applicant are untenable.

11.  The prospects of the Applicant’s intended appeal against the decision of the Court is a crucial factor to consider in his application to extend time. Authorities such as Re MK HCMP 2609/2016, Islam Raja Rais v. Director of Immigration HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226 are relevant in this regard.  The Applicant in his affirmation and during the hearing has not provided any ground of appeal.  He has only given his reasons for the delay in filing the notice of appeal.    

12.  Subsequent to the hearing, the Applicant has written 4 letters to, and filed a further affirmation dated 22 February 2019 with, this Court.  The letters do not contain anything about his ground of appeal and the affirmation is in exactly the same terms as the affirmation which was filed when the Applicant first made the application for time extension.  They therefore do not add anything to the case of the Applicant and the letters which were written in English in the handwriting of the Applicant shows that the Applicant has a reasonable command of the language.

13.  It is for the Applicant to satisfy the Court that his intended appeal has good prospects of success.  The grounds advanced by the Applicant in his application for leave to apply for judicial review had been given due consideration by the Court which had come to the conclusion that there was neither procedural unfairness nor error of law in the decisions of the Director and the Board.

14.  The Court is of the view that the intended appeal of the Applicant has no prospect of success and it serves no meaningful purpose to extend the time for appealing.  The application for leave to appeal out of time is refused and the Applicant’s summons is dismissed.